10 U.S. Code § 849 - Art. 49. Depositions

(1)At any time after charges have been signed as provided in section
830 of this title (article 30), oral or written depositions may be ordered as follows:

(A)Before referral of such charges for trial, by the convening authority who has such charges for disposition.

(B)After referral of such charges for trial, by the convening authority or the military judge hearing the case.

(2)An authority authorized to order a deposition under paragraph (1) may order the deposition at the request of any party, but only if the party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved for use at a preliminary hearing under section
832 of this title (article 32) or a court-martial.

(3)If a deposition is to be taken before charges are referred for trial, the authority under paragraph (1)(A) may designate commissioned officers as counsel for the Government and counsel for the accused, and may authorize those officers to take the deposition of any witness.

(b)The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

(c)Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

(d)A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears—

(1)that the witness resides or is beyond the State, Commonwealth, or District of Columbia in which the court, commission, or board is ordered to sit, or beyond 100 miles from the place of trial or hearing;

(2)that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or

(3)that the present whereabouts of the witness is unknown.

(e)Subject to subsection (d), testimony by deposition may be presented by the defense in capital cases.

(f)Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence in any case in which the death penalty is authorized but is not mandatory, whenever the convening authority directs that the case be treated as not capital, and in such a case a sentence of death may not be adjudged by the court-martial.

In subsection (d), the word “Commonwealth” is inserted to reflect the present status of Puerto Rico. The words “of Columbia” are inserted after the word “District” for clarity. The words “the distance of” are omitted as surplusage.

In subsections (e) and (f), the words “the requirements of” and the words “of this article” are omitted as surplusage. The word “presented” is substituted for the word “adduced” in subsection (e).

In subsection (f), the word “directs” is substituted for the words “shall have directed”. The words “by law” are omitted as surplusage.

Amendments

2014—Subsec. (a). Pub. L. 113–291amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “At any time after charges have been signed as provided in section
830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.”

1983—Subsecs. (d), (f). Pub. L. 98–209inserted “or, in the case of audiotape, videotape, or similar material, may be played in evidence” after “read in evidence”.

1968—Subsec. (a). Pub. L. 90–632inserted reference to the taking of depositions being forbidden by the military judge or the court-martial without a military judge if the case is being heard.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209effective on first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) ofPub. L. 98–209, set out as a note under section
801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632effective first day of tenth month following October 1968, see section 4 ofPub. L. 90–632, set out as a note under section
801 of this title.